Snider v. Commissioner Social Security Administration

Filing 20

OPINION and ORDER - The Commissioner's decision is not supported by substantial evidence in the record, nor based on proper legal standards, and it is therefore REVERSED and REMANDED for an immediate payment of benefits. IT IS SO ORDERED. DATED this 9th day of January, 2018, by United States Magistrate Judge John V. Acosta. (peg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

STEVE J. SNIDER,
Case No. I :16-cv-02168-AC
Plaintiff,

OPINION AND ORDER
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Secmity
Defendants.

ACOSTA, Magistrate Judge:
Steve Snider ("plaintiff') seeks judicial review ofthe final decision of the Commissioner of the
Social Secruity Administration ("Commissioner") denying his application for Disability Insmance Benefits
("DIB"). Because the Commissioner's decision is not suppo1ted by substantial evidence, nor based on
proper legal standards, her decision is REVERSED and REMANDED for an immediate payment of
benefits.
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Procedural Background
Plaintiff filed his application for DIB on February 8, 2013, alleging disability beginning June 22,
2010. (Tr. 158.) He subsequently amended his alleged onset date to Februmy 1, 2008. (Tr. 267.) The
Commissioner denied plaintifrs application initially and upon reconsideration. (Tr. 64, 77.) Plaintiff
requested ahem'ing before an Administrative Law Judge ("ALJ"), and an administrative hem·ing was held
on Februmy 12, 2015. (Tr. 9, 25-63 .) After the hem'ing, the ALJ issued a decision finding plaintiff not
disabled dated May 29, 2015. (Tr. 6--19 .) The Appeals Council denied his subsequent request forreview
on October 3, 2016, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-3.)

Factual Background
Born in May, 1959, plaintiffwas 55 yem·s old at the time ofthe administrative hearing. (Tr. 15 8.)
He graduated from high school and worked previously as a construction worker. (Tr. 194.) Plaintiff
alleged disability due to: autism or "autism like as burgers [sic] ... not high functioning;" attention deficit
hyperactivity disorder ("ADHD"); and post-traumatic stress disorder ("PTSD"). (Tr. 193, 267.)

Standard ofReview
The court must affirm the Commissioner's decision ifit is based on proper legal standm·ds and the
findings m·e supp01ied by substantial evidence in the record. Hammockv. Bowen, 879 F .2d 498, 501
(9th Cir. 1989). Substantial evidence is "more thanamere scintilla. It means such relevant evidence as
a reasonable mindmight accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consol. Edison Co. v. NL.R.B., 305 U.S. 197, 229 (1938)). The court must
weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez
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v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can support either a
grant or a denial, [a court] may not substitute [its]judgment forthe ALJ' s." Massachi v. Astrue, 486 F.3d
1149, 1152 (9th Cir. 2007) (citation omitted).
The initial burden ofproof rests upon the claimant to establish disability. Howardv. Heckler, 782
F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to
engage in any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected ... to last for a continuous period of not less than 12 months." 42
U.S.C. § 423(d)(l )(A).
The Commissioner has established a five-step sequential process for detenniningwhether a person
is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First, the
Commissioner dete1mines whether the claimant is engaged in "substantial gainful activity." Yuckert, 482
U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). Ifso, she is not disabled.
At step two, the Commissioner evaluates whether the claimant has a "medically severe impairment
orcombinationofimpahments." Yuckert, 482 U.S. at 140--41; 20 C.F.R. §§ 404.1520©, 416.920©.
If the claimant does not have a severe impairment, she is not disabled.
At step three, the Commissioner detennines whether the clahnant's impairments, either individually
or in combination, meet or equal "one of a number of listed impairments that the [Commissioner]
acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 140--41; 20
C.F.R. §§ 404.1520(d), 416.920(d). Ifso, she is presumptively disabled; if not, the Commissioner
proceeds to step four. Yuckert, 482 U.S. at 141.

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At step four, the Commissioner dete1mines whether the claimant can still pe1f01m "past relevant
work." 20 C.F.R. §§ 404.1520(f), 416.920(f). Ifthe claimant can perform past relevant work, she is not
disabled; if she cannot, the burden shifts to the Commissioner.
At step five, the Commissioner must establish the claimant can perform other work existing in
significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§
404.1520(g), 416.920(g). Ifthe Commissioner meets this burden, the claimant is not disabled. 20 C.F.R.

§§ 404.1566, 416.966.

The ALi's Findings
The ALJ performed the sequential analysis, as noted above. At step one, the ALJ found plaintiff
had not engaged in substantial gainful activity since the amended alleged disability onset date. (Tr. 12.)
At step two, the ALJ concluded plaintiffhad the severe impairments of bipolar disorder and persistent
depressive disorder. (Id.) At step three, the ALJ determined plaintiff did not have an impairment or
combination of impairments that met or medically equaled a listed impairment. (Id.)
The ALJ determined plaintiff had the RFC to perform a full range ofwork at all exertional levels,
with the followingnon-exe1tional limitations: "He could understand and carry out simple instrnctions in a
work environment with few, if any workplace changes," and "[h]e was limited to no more than occasional
interaction with the public and coworkers." (Tr. 14.)
At step four, considering plaintiffs age, education, work experience, and RFC, the ALJ found
plaintiff was able to pe1form his past relevant work as a construction worker. (Tr. 18.) Accordingly, the
ALJ ended the sequential analysis at step four and found plaintiff not disabled during the relevant time
period. (Id.)
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Discussion
Plaintiff argues the ALJ' s decision should be reversed because: (1) the RFC is silent on his limited
ability to work without distracting others; (2) the ALJ erred in failing to take into account the amount oftime
he would be-offtask in the workplace; (3) the ALJ did not include a close supervision requirement in the
RFC; and (4) the ALJ improperly discredited his symptom testimony. Pl.' s Opening Br. 5-20; PL' s Reply
Br. The Commissioner concedes the ALJ erred, but argues there are outstanding issues that must be
resolved, so this case should be remanded for further proceedings. Def.' s Br. 6-8. In response, plaintiff
argues that the Commissioner has not demonstrated that further proceedings would be useful because the
record is complete as to the dispositive issue in this case. Pl.'s Reply Br.
For the reasons discussed below, the court finds that remanding for fmiher proceedings would
serve no useful purpose and, therefore, remands for an immediate payment of benefits.

I. Legal Standard
The decision whether to remand for further proceedings or for immediate payment of benefits is
within the discretion of the comi. Harman v. Apfel, 211F.3d1172, 1178 (9th Cir. 2000), cert. denied,
531U.S.1038 (2000). The issue turns on theutilityoffurtherproceedings. Aremandforanawardof
benefits is appropriate when no useful purpose would be served by further administrative proceedings or
when the record has been fully developed and the evidence is insufficient to suppmt the Commissioner's
decision. Straussv. Comm 'r, 635F.3d1135, 1138-39 (9th Cir. 2011) (quoting Benecke v. Barnhart,
379 F.3d 587, 593 (9th Cir. 2004)). The court may not award benefits punitively and must conduct a
"credit-as-hue" analysis to determine if a claimant is disabled under the Act. Id. at 1138.
Under the "credit-as-hue" doctrine, evidence should be credited and an immediate award of
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benefits directed where: (!)the ALJ has failed to provide legally sufficient reasons for rejecting such
evidence; (2) there are no outstanding issues that must be resolved before a detennination of disability can
be made; and (3) it is clear from the record thatthe ALJ would be required to find the claimant disabled
were such evidence credited. Id The "credit-as-true" doctrine is notamandatorymle in the Ninth Circuit,
but leaves the court flexibility in determining whether to enter an award ofbenefits upon reversing the
Commissioner's decision. Connettv. Barnhart, 340 F.3d 871 876 (9th Cir. 2003) (citing Bunnell, 947
F.2d at 348 (en bane)). The reviewing court should decline to credittestimony when "outstanding issues"
remain. Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).
IL Analysis
Plaintiff first argues the ALJ gave significant weight to evidence that his ability to work with others
without distracting them is limited, but erroneously failed to include the limitation in the RFC. Pl.' s Opening
Br. 5-8; PL 's Reply Br. 2-5. Plaintiff notes that State agency medical consultants Joshua Boyd, Psy.D.,
and Paul Rethinger, Ph.D., indicated in Mental Residual Functional Capacity ("MRFC") assessment fmms
that plaintiffwas "moderately limited" in "the ability to get along with coworkers or peers without distracting
them or exhibiting behavioral extremes." (Tr. 97-98, 107-08.) The ALJ gave great weight to the
reviewing doctors' opinions because they were consistent with the record as a whole. (Tr. 17 .)
Additionally, after evaluating plaintiffin March 2015, examining psychologist William McConochie,
PhD., opined that plaintiffwas moderately impaired in his ability to engage in appropriate social interaction
in the workplace due to"[m]ental peculiarities, depression, [and] poor social skills." (Tr. 457.) The ALJ
pmported to give great weight to Dr. McConochie's opinion because "it provide[d] some ofthe only insight
as to [plaintiff's] mental health limitations," and was "supported by detailed notes and a thorough
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examination." (Tr. 17.) Furthetmore, in letters addressed to the ALJ, plaintiffs caregiver William Motison
reported that after trying to give plaintiffa job he had to terminate him after only two days of work, in patt
because he "constantlyintetfere[d] with other employees, trying to be funny and asking questions or making
statements that do not apply to what is going on atthat time." (Tr. 282.) The ALJ also gave substantial
weight to Morison's observations because they were consistent with the record as a whole. (Tr. 15.)
Despite giving significant weight to these medical opinions and lay witness observations, t11e ALJ
failed to include, or provide sufficient reasons for not including, RFC limitations relating to plaintiffs inability
to interact appropriately with coworkers. Pl.' s Opening Br. 5-8. The Commissioner does not provide a
direct response to this assigmnent of etrnr. See Def.' s Br. 6-8. In determining the RFC, the ALJ must
consider limitations imposed by all ofplaintiffs impaitments, and evaluate "all ofthe relevant evidence,"
including medical source opinions and lay witness statements. SSR 96-8p, available at 1996 WL
374184, at *5 (July 2, 1996).
With respect to plaintiffs argument that Drs. Boyd and Rethinger opined that plaintiff was
"moderately limited" in "the ability to get along with coworkers or peers without distracting them or
exhibiting behavioral extremes," plaintiffs argument fails. The Ninth Circuit rejected a similru· argument in
Israel v. Astrue, 494 F. App'x 794, 797 (9th Cir. 2012). The comt found that a similru· MRFC form

instructing physicians to rate a claimant's abilities in broad terms, such as "moderately limited," in areas of
functioning is "merely a worksheet ... and does not constitute the RFC assessment. Instead, it is the
narrative written by the psychiatrist or psychologist ... that adjudicators are to use as the assessment of
RFC." Id atn.1. Indeed, the MRFC fotmhere explicitly stated that"the questions below help determine
the individual's ability to perform sustained work activities ... the actual [MRFC] assessment is recorded
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in the rnmative discussion(s)." (Tr. 96, 106.) Thus, the moderatelimitation in the "ability to get along with
coworkers or peers without distracting them or exhibiting behavioral extremes" was not part ofthe MRFC
nanatives assessed by Drs. Boyd and Rethinger. Accordingly, the ALJ was not required to include it in
the ultimate RFC formulation.
In contrast, Dr. McConochie' s opinion was provided on a fmm that did not explicitly limit its
applicability to a "nmrative" statement. Thus, his opinion that plaintiffwas moderately limited in interacting
with coworkers, which the ALJ accorded "great weight," should be taken as his medical opinion. (Tr. 17,
457 .) "Where an ALJ does not explicitly reject a medical opinion or set forth specific, legitimate reasons
for crediting one medical opinion over another, [s]he en-s." Garrison v. Colvin, 759 F.3d 995, 1012 (9th
Cir. 2014 ). Moreover, Dr. McConochie' s opinion was con-ob orated by the testimony ofMorison, who
explained that plaintiffcould not keep his job because he distracted others incessantly. (Tr. 282.) "[LJay
witness testimony as to a claimant's symptoms or how an impairment affects ability to work is competent
evidence ... and therefore cannot be disregarded without comment." Nguyen v. Chafer, 100F.3d1462,
1467 (9th Cir. 1996) (emphasis in original) (internal citations omitted). Thus, by omitting plaintiffs wellsupported limitation, the ALJ failed to provide not just legally sufficient reasons, but any reasons for not
crediting Dr. McConochie' s opinion and Morison's observations, which she purportedly accepted and
found credible.
Although not argued by the Commissioner, the court finds on this record that an RFC limitation to
occasional coworker contact does not adequately address plaintiffs limitation. In questioning the VE, the
ALJ asked whether a hypothetical individual with all ofplaintiffs RFC limitations could pe1fo1m his past
work orother jobs existing in the national economy. (Tr. 55-56.) The VE answered in the affirmative,
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that such an individual could perform plaintiffs past work as a constrnction worker, as well as other jobs
that existed in the economy. (Id.) The ALJ then asked the VE about employer tolerance for a distracting
employee. (Tr. 56.) The VE responded that, even iflimited to only occasional contact, an employee who
distracted and took coworkers off task would not be employable. (Tr. 56-58.)
That the ALJ asked the VE two separate questions, one generally addressing occasional coworker
contact and the other narrowed to addressing a distracting employee, demonstrates that the ALJ viewed
as distinct potential limitations the quantity of coworker contact and the quality ofthat contact, but he did
not translate plaintiffs distracting behavior into a "concrete" limitation of occasional coworker contact. See
Brinkv. Comm 'rSoc. Sec. Admin., 343 F. App'x21l,212 (9th Cir. 2009) (findingthatamoretailored

hypothetical question presented to the VE by the ALJ demonstrated that the ALJ' s RFC formulation, which
was based on the less restrictive hypothetical question, did not account forthe full extent ofthe plaintiffs
impahments). Instead, by failing to include the second, nall'ower hypothetical into the RFC, the ALJ
impermissibly omitted a limitation that she purported to accept, which was legal enor. See Valentine v.
Comm 'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) ("The hypothetical an ALJ poses to a

[VE], which derives from the RFC, must set out all the limitations and restrictions ofthe particular claimant.
Thus, an RFC that fails to take into account a claimant's limitations is defective.") (internal citation and
quotation marks omitted). Consequently, the first prong ofthe credit-as-true analysis is satisfied. See
Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (citing Burrell v. Colvin, 775 F.3d 1133,

1141 (9th Cir. 2014)).
Regarding step two ofthe credit-as-true analysis, plaintiff argues there are no outstanding issues
that need to be resolved before a disability determination can be made. As plaintiff accurately notes
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regarding the issue of distracting others, the Commissioner cites no contrary evidence in the record nor
alleges any relevant aspect of the issue requires further development of the record. Pl.' s Reply Br. 5.
Indeed, the Commissioner's argument for further proceedings primarily relies upon her assertion that there
are umesolved issues in the record pertaining to the level of supervision plaintiff requires- an issue
umelated to plaintiffs inability to interact appropriately with coworkers. See Def.' s Br. 6-8. 1 Although
the court agrees that a supervisory limitation should have been one ofthe limitations included in the RFC,
the eirnr is moot because the court has found plaintiffs limitation of distracting coworkers supports remand
for an award ofbenefits. See infra. Furthetmore, without providing any rationale, the Commissioner
asserts in the alternative thattheALJ should be given the oppottunity to reevaluate two pieces of evidence:
medical records dating back to 1965 and a one-paragraph lay witness letter that the ALJ neglected to
discuss in her decision. Id at 7; see also (Tr. 283-98, 372.)
The Commissioner's argument is unpersuasive for two reasons. First, the Commissioner's assertion
that the ALJ failed to "consider or discuss" historical medical records is contradicted by the ALJ's
discussion of those medical records in her decision. Def.'s Br. 7; see also (Tr. 15-16.) Second, the
evidence further supports, ratherthan detracts from, plaintiffs clear limitations in his ability to work with
others in an appropriate manner. See, e.g., (Tr. 283 (plaintiff, age 6, "indicated almost constant
spontaneous conversation" on exam, and recommended forthe "educable mentally retarded program"),

1

The Commissioner notes that the ALJ gave great weight to the opinions ofDrs. Boyd and Rethinger,
who found plaintiffwas limited to "'regular (not special) supervision,"' while also giving great weightto Dr.
McConochie's opinion that plaintiffrequired '"close supervision.'" Def.'s Br. 6 (quoting Tr. 97, 107, 457.)
The RFC, however, included no supervisory restriction, which the Commissioner argues creates an
"outstanding issue" that must be resolved. Def.'s Br. 6, 8.
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288 (plaintiff, age 16, noted to have "significant difficulties in his relationships with other people"), 372 (lay
witness described that plaintiff, age 53, "had an unusual conversational style in which he would get stuck
on one idea and keep coming back to it over and over")). Simply put, the Commissioner has failed to raise
any relevant grounds necessitating further development of the record.
Taken together, Dr. McConochie's opinion and Morison's obsetvation clearly establish that plaintiff
has substantial difficulty interacting appropriately with coworkers. Dr. McConochie's repott defined
"moderate impairment" as "psychologically-based problems that are likely to cause an employer to warn
the employee that if behavior does not improve, dismissal is imminent." (Tr. 457 .) The doctor concluded
that plaintiff's psychological problems were unlikely to improve because they were "life-long in endurance,
in spite ofpsychotropic medications." (Id) Morison's obsetvation ofplaintiff's inability to function, even
in the highly accommodating workplace environment he arranged for plaintiff, provides a concrete example
in support ofDr. McConochie' s opinion that plaintiff's irnpaitment -distracting coworkers and taking them
off task- ultimately would result in termination. (Tr. 282.) Nothing in the record contradicts this
interpretation.2 Accordingly, the second prong ofthe credit-as-true analysis is satisfied, because there are
no relevant outstanding issues that must be resolved before a determination of disability can be made.
Treichlerv. Comm 'r a/Soc. Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014) (holding that under the

second step ofthe credit-as-true analysis, the district court must ensure "all essential factual issues have

2

Based on Ninth Circuit case law, the ALJ's failure to incorporate Dr. Boyd and Dr. Rethinger's
findings ofmoderate limitation in plaintiff's "ability to get along with coworkers or peers without distracting
them or exhibiting behavioral extremes" in the RFC formulation did not necessarily establish legal error.
See Israel, 494 F. App'x at 797. Those findings, however, are entirely consistent with Dr. McConochie' s
opinion and Morison's observations, and therefore further establish that there are no outstanding issues
warranting fmther development of the record. See (Tr. 98, 108, 282, 457.)
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been resolved" before an award of benefits can be granted).
Atthe hearing, the ALJ asked the VE hypothetical questions directly related to plaintiff's propensity
to distract others. (Tr. 56-57.) The VE testified thatan individual who consistently distracted coworkers
-even iflimited to only occasional coworker interaction - would be precluded from employment. (Id.)
The ALJ' s RFC contained all of the restrictions she included in the hypothetical presented to the VE, save
a restriction that addressed plaintiffs propensity to distract coworkers. Compare (id.) with (Tr. 14).
Thus, the third prong of the analysis is satisfied, because the record is clear that had the ALJ properly
credited the substantial evidence of plaintiffs propensity to distract others, the ALJ would have been
required to find plaintiff disabled based on the VE's testimony. Because this argument is dispositive ofthis
matter, the Court "decline[s] to reach [plaintiff's] alternative ground[s] for remand." Hiler v. Astrue, 687
F .3d 1208, 1212 (9th Cir. 2012). Accordingly, there is no utility in fmiher proceedings and an award for
the immediate payment of benefits is warranted on this ground alone.

Conclusion
The Commissioner's decision is not supp01ted by substantial evidence in the record, nor based on
proper legal standards, and it is therefore REVERSED and REMANDED for an immediate payment
of benefits.
IT IS SO ORDERED
DATED this

9A-day of January, 2018.

OHN V. ACOSTA
d States Magistrate Judge

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